The Leaky Leviathan and A Public Accountability Defense for Whistleblowers

In his blog, Bruce Schneier points to some interesting articles that are indeed worth a read:

The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information and A Public Accountability Defense for National Security Leakers and Whistleblowers

The former article, by David E. Pozen, states in its abstract:

“The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences.”

The latter article, by Yochai Benkler, poses the sigle most important question to the law community:

“Across a wide range of government agencies and private companies, the basic model of whistleblowing sees the individual insider as a critical corrective to the dynamics of organizations.37 The model sees organizations as prone to error, incompetence, and abuse. Organizations control their own information flows to other systems so as to avoid the other systems exerting power to shape the practices arrived at through the internal dynamics of the organization. Whistleblowers create an alternative information channel. Whistleblowers are an important design element because their decision to open a new channel is uncorrelated with the internal practices, habits, and routines of the organization that caused the wrong. Whistleblowing, including leaking to the press to harness the system of public opinion, breaks through the managed information flows and provides external systems with the information they need to act on practices that the managed information flows underwrote.
The national security establishment has long been an exception to whistleblower protection” (…) ” To paraphrase Clemenceau, national security is too important to be left to national security insiders.”

How do we deal in our societies with systems that have an illegality, error, incompetence or malfeasance problem, if there is no one that can ask the questions that need to be asked? And Benkler gives a vivid example, the Maginot-line that was designed and implemented by patriots and led to the collapse of France in the second world war, and J. Edgar Hoover, who became a standard point of reference for abuse of power.

Where does society draw the line between “secure” and “repressive”? Can democracy survive secret courts, secret laws and gag-orders? How can we sustain freedom of thought, freedom of voicing opinions and discussions about democratic choices?

Benkler states, quoting Schneier, that the fewer secrets a system has, the more secure it is:

“Secrecy involves three distinct weaknesses. First, secrets are hard to keep. The more a system depends on secrecy as opposed to robust design, and the more its characteristics must be known to more people so they can work with it, the more susceptible it is to failure because it leans too heavily on that relatively weak link. Second, when secrets cover many facets of what makes a security system work, they tend to be interdependent and hard to change without changing the whole system. This makes security systems “brittle.” They break when the secret is disclosed. A system with few secrets and few dependencies can change the information revealed to negate the revelation. If a password is revealed, it can be changed. If the core design is weak and its defense depends on secrecy, once the secret is out, the system is vulnerable. Ask Darth Vader.
The third problem with secrecy is its most important for our purposes: secrets undermine error correction. No system is perfect.”

And continues:

“Open, democratic societies are not weaker for their openness; they are stronger for it”

Benkler identifies areas, for which there should be whistleblower exemption from prosecution, if any harm is properly mitigated, e.g. secret laws or rules that govern use of national security or policing powers in ways that threaten life, limb, and liberty. He also mentions surveillance programs and instances of abusive surveillance amongst others.

“Surveillance is so corrosive to individual freedom and democratic opinion formation, association, and expression that its existence and contours should always be subject to public scrutiny.”

He also spends thought on the question of who should carry the burden of proof, of whether some disclosure were in the public interest and that this should include the public opinion.

“Evidence showing that significant swaths of public opinions view the disclosed practices as illegal or requiring substantial change will create a presumption of reasonableness.”

Of course, the general public, if it looks into matters, may come to some far-reaching conclusions on its way, like for example, that the NSA threatens national security, which may impact on the operation as such.

An impressive list of US whistleblowers are then listed and analyzed properly, underlining the impression that the US obviously is home to the most courageous and patriotic whistleblowers by far and sheds light on the individual conscience colliding with repeated system failures.

He then looks into matters regarding Snowden and comes to a mixed bag of results:

“To summarize, disclosure of the telephony metadata program and the limitations of the FISC is clearly protected. Disclosures of Bullrun, 702 collection, and Muscular also should enjoy the defense. Disclosure of TAO alone, however, would likely not have properly come under the defense. Given the breadth and depth of public concern over the former aspects of the program and the extensive, multi- branch condemnation of so many aspects of the disclosed programs and oversight system, Snowden presents a case where the overall significance of the disclosures is not only reasonable, but also overcomes claims of harm, once the harms claimed are properly reduced to losses in articulable operational terms, rather than general necessity to recalibrate surveillance measures. The defense would be rendered meaningless, however, if prosecutors were free to cherry pick the least defensible disclosures, charge offenses based on them alone, and limit introduction of the entirety of the disclosure. To prevent prosecutors from manipulating cases to nullify the defense, courts must permit defendants to introduce other public disclosures that arose from a common set of operative facts that led to the disclosure of the charged documents as relevant to the defense.”

As a result, Benkler comes to the conclusion, that

“information about illegality and systemic failure is a critical element in the longer-term struggle to resist the inevitable risks associated with having a large, complex, and powerful national security system. A powerful legislative push against the increasingly aggressive prosecutions of the past decade, such a public accountability defense would restore something close to the pre-9/11 equilibrium in practice”.